Judge Richard A. Posner of the 7th Circuit Court of Appeals recently held that copyright protection cannot be extended for the literary characters of Sherlock Holmes and Dr John H. Watson.
Sir Arthur Conan Doyle authored around 50 detective stories featuring these fictional characters between 1887 to 1923. Works published before January 1923 no longer have copyright protection under U.S. law, meaning that the copyrights on these stories published before 1923 have expired. Doyle published 10 more stories after 1923, whose copyrights, which will expire 95 years after the date of their original publication, were passed to his estate.
Doyles estate demanded a license from Pegasus Books for publishing an anthology of Sherlock Holmes stories in 2013, which caused the publishing house to drop the publication of this book. The author of the dropped anthology, Leslie Klinger, sued the Doyle estate, seeking declaratory judgment of non-infringement. Among other arguments, the Doyle estate contended that the characters were still copyrighted because they had evolved throughout the series of stories, including those written after 1923, and were therefore still protected by U.S. copyright.
The Court rejected this claim and affirmed the judgment of non-infringement because the story had fallen into the public domain. Since the original story, and therefore the original copyright, had expired, the characters may be used by follow-on authors. In Judge Posner’s words, “the alliterations do not revive the expired copyrights on the original characters.” To find infringement in these circumstances would be to improperly extend copyright protection.
This case highlights a helpful principle for authors and copyright owners, that it is important to separate newer, additional elements in derivative works, which may still be protected by copyright, from original elements whose copyright has expired.
Read the opinion here.